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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

February 21, 2017 

v No. 329445 

Wayne Circuit Court 

THOMAS MARKESE HARRIS, LC No. 12-008332-01-FC 

 Defendant-Appellant. 

Before: JANSEN, P.J., and BECKERING and GADOLA, JJ. 

PER CURIAM. 

 A jury convicted defendant of armed robbery, MCL 750.529, felonious assault, MCL 

750.82, and possession of a firearm during the commission of a felony (felony-firearm), MCL 

750.227b. The trial court vacated the felonious assault conviction and sentenced defendant to 10 

to 22 years’ imprisonment for the armed robbery conviction, and a consecutive two-year term of 

imprisonment for the felony-firearm conviction. In a prior appeal, this Court affirmed 

defendant’s convictions, but vacated his sentences and remanded for resentencing. People v 

Harris, unpublished opinion per curiam of the Court of Appeals, issued May 19, 2015 (Docket 

No. 320233), p 8. On remand, the trial court resentenced defendant to another prison term of 10 

to 22 years for the armed robbery conviction. Defendant appeals as of right, again challenging 

his armed robbery sentence. We remand for further proceedings in accordance with People v 

Lockridge, 498 Mich 358, 397-399; 870 NW2d 502 (2015). 

 Defendant’s sole stated issue is that the trial court scored offense variables (OVs) 4 and 

14 on the basis of facts not found by the jury in violation of his Sixth Amendment right to a jury 

trial.1

 Because defendant did not object to the scoring of the sentencing guidelines on 

 

1

 Defendant’s brief includes an argument that he was sentenced on the basis of inaccurate 

information because the trial court failed to consider information regarding his good conduct 

while in prison. However, defendant failed to properly present the issue for our review because 

it was not raised in his statement of the questions presented. People v Unger, 278 Mich App 

210, 262; 749 NW2d 272 (2008). Regardless, the record indicates that the court did consider this 

information. Defendant made a statement during his resentencing in which he described his 

positive accomplishments while in prison, as well as the fact that he had not received any prison 
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constitutional grounds at the resentencing, this issue is unpreserved, and therefore, is reviewed 

for plain error affecting defendant’s substantial rights. See Lockridge, 498 Mich at 392. 

 The core holding of Lockridge is that the sentencing guidelines are “constitutionally 

deficient” to the extent that they “require judicial fact-finding beyond facts admitted by the 

defendant or found by the jury to score the offense variables . . . that mandatorily increase the 

floor of the guidelines minimum sentence range.” Lockridge, 498 Mich at 364. To remedy this 

violation, the Court severed MCL 769.34(2) to the extent that it made a sentencing guidelines 

range based on judge-found facts mandatory and held that the guidelines are advisory only. Id. 

at 364-365. The Court concluded, “To preserve as much as possible the legislative intent in 

enacting the guidelines, however, we hold that a sentencing court must determine the applicable 

guidelines range and take it into account when imposing a sentence.” Id. at 365. 

 In cases in which (a) the defendant was sentenced on or before July 29, 2015, and the 

issue is unpreserved, (b) the defendant’s OV score was calculated using facts found by the court, 

(c) the impermissible judicial fact-finding affected the defendant’s placement in the cell of the 

sentencing grid under which he was sentenced, and (d) the trial court did not depart upward from 

the guidelines, the appropriate remedy is to remand the case to “the trial court for that court to 

determine whether plain error occurred, i.e., whether the court would have imposed the same 

sentence absent the unconstitutional constraint on its discretion.” Lockridge, 498 Mich at 397, 

399. This procedure is known as a “Crosby”2

 remand. Id. at 397. The Court clarified that “[i]f 

the trial court determines that it would not have imposed the same sentence but for the constraint, 

it must resentence the defendant.” Id. at 399. 

 Although this Court previously held that there was sufficient evidence to support the 10-

point scores for OVs 4 and 14, this Court did not address whether these variables were scored on 

the basis of judicially found facts. Harris, unpub op at 2-3. OV 4 considers psychological injury 

to the victim. MCL 777.34(1). A score of 10 points is appropriate where “[s]erious 

psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a). 

OV 14 considers the offender’s role in the offense. MCL 777.44. A score of 10 points is 

appropriate where “[t]he offender was a leader in a multiple offender situation.” MCL 

777.44(1)(a). “ ‘The essential elements of an armed robbery are (1) an assault, and (2) a 

felonious taking of property from the victim’s person or presence, while (3) the defendant is 

armed with a weapon described in the statute.’ ” People v Henry (After Remand), 305 Mich App 

127, 142-143; 854 NW2d 114 (2014) (citation omitted). “ ‘The offense of assault requires proof 

that the defendant made either an attempt to commit a battery or an unlawful act that places 

another in reasonable apprehension of receiving an immediate battery.’ ” Id. at 143 (citation 

omitted). A battery constitutes “ ‘an intentional, unconsented and harmful or offensive touching 

of the person of another, or of something closely connected with the person.’ ” Id. (citation 

omitted). 

tickets in 20 months and had been in an honor unit for over 15 months. The court responded, “I 

appreciate what you said,” before resentencing defendant. 

2 United States v Crosby, 397 F3d 103 (CA 2, 2005). 
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 In finding defendant guilty of armed robbery, it was not necessary for the jury to find 

that the victim suffered a serious psychological injury that would require professional treatment, 

or to find that defendant was a leader in the commission of the offense. Further, while defendant 

did testify at trial, he denied any knowledge of the offense. Accordingly, the scores for OVs 4 

and 14 were based on judicially found facts. In addition, the judicial fact-finding affected 

defendant’s placement in the cell of the sentencing grid under which he was sentenced. 

Defendant’s minimum sentencing guidelines range was 81 to 135 months’ imprisonment. 

However, reducing his OV score by 20 points places defendant in the 51 to 85 months’ 

imprisonment sentencing guidelines range. Id. 

 Defendant was resentenced before Lockridge was decided, and the 20 points attributable 

to the scoring of OVs 4 and 14 affect defendant’s placement in the cell of the sentencing grid 

under which he was sentenced. Therefore, defendant is entitled to a Crosby remand. On 

remand, the trial court must determine whether it would have imposed a materially different 

sentence but for the unconstitutional constraint on its discretion because of the mandatory 

application of the guidelines at the time of defendant’s previous resentencing. See Lockridge,

498 Mich at 397. Defendant must be given the option of promptly notifying the trial judge that 

another resentencing will not be sought. See id. at 398. “If . . . defendant does not so notify the 

court, it ‘should obtain the views of counsel, at least in writing, but “need not” require the 

presence of [defendant],’ in ‘reaching its decision (with or without a hearing) whether to 

resentence.’ ” Id. (citation omitted). “Upon making that decision, the trial court shall ‘either 

place on the record a decision not to resentence, with an appropriate explanation, or vacate the 

sentence and, with . . . [d]efendant present, resentence in conformity with’ ” Lockridge. Id. 

(citation omitted). 

 Remanded for further proceedings consistent with this opinion. We do not retain 

jurisdiction. 

/s/ Kathleen Jansen 

/s/ Jane M. Beckering 

/s/ Michael F. Gadola